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The Services provided by Chai Consulting (“CC”) under any job agreement are subject to these Terms of Service (“TOS”) and the Client agrees to be bound by these TOS. For the purposes of these TOS, “CC” shall also mean all owners, principals, directors, officers, agents, employees, third-party advisors, contractors, successors, beneficiaries, and assigns of CC. “Client” shall also include all owners, principals, directors, officers, agents, employees, third-party advisors, contractors, successors, beneficiaries, and assigns of Client.
1. Services/Authorization to Represent/Exclusivity. CC shall provide Client with the Services described in the job agreement. Client agrees that CC may represent Client exclusively with regard to the Services described in the job agreement for the period of time set forth therein. For wine brokering or authentication services, Client further represents and warrants to CC: (a) that Client is the owner of any wine related to the Services provided by CC or that CC sells or brokers for sale on behalf of Client, and (b) that it has the authority to make any selling or other decisions related to such wines. Client acknowledges and agrees that CC shall be entitled to a bonus commission on any sales of Client’s wines to any third party during the provision of the Services by CC and for a period of twelve (12) months after provision of the Services in the job agreement or the termination of this agreement. Client understands and agrees that the term “third-party” shall be interpreted broadly and shall include (without limitation), friends, associates, affiliates, associated companies, or any other entity or person besides Client.
2. Compensation. Client shall pay CC as set forth in the job agreement. Client agrees and understands that, unless specified otherwise in the job agreement entered into by Client, fees due to CC are payable upon receipt of CC invoices. If CC is entitled to consulting fees, commissions, expenses, or any other costs attributable to Client, Client agrees and authorizes CC to deduct such amounts from any proceeds from sales of any wine of Client’s. Late fees of 2% per quarter apply and will be charged to all past-due accounts.
3. Expenses. Client shall reimburse CC for any expenses incurred by CC in the provision of the Services, other than day-to-day business costs. Specifically, Client shall reimburse CC for any reasonable travel expenses, wine costs attributable to Services provided by CC, copying or fax charges over $10, or any other mutually agreed upon expense, as specified in the job agreement or otherwise in writing. Unless otherwise specified in the job agreement or otherwise in writing, Client shall pay any such expenses upon receipt of an invoice from CC. If a particular item or expense will cost more than $250, CC, at its sole discretion, may forward such expense or item to Client for direct payment.
4. Termination. Either party may terminate the Services for any reason upon thirty (30) days’ written notice. All fees and costs due to CC as of the date of termination shall be due and payable immediately on the date of termination.
5. No Warranty. The Services provided by CC are that of professional opinion and recommendation based on its skills, experience, and expertise in the fine wine auction industry. HOWEVER, CONSULTANT CANNOT AND DOES NOT GUARANTEE THE ACCURACY OF ANY FACTS OR OPINIONS PROVIDED TO CLIENT OR ANY CONCLUSIONS DRAWN BY CC AS TO AUTHENTICITY, PRICE, SALEABILITY, OR VALUE RELATED TO ANY SERVICES PROVIDED TO CLIENT. CONSULTANT FURTHER DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Such disclaimer of warranties shall extend to any Services or other information provided by CC. Client acknowledges and agrees to the above disclaimers and agrees to hold harmless CC from any claims of any third parties with respect to any claim, statement, fact, opinion, conclusion, or other information provided to Client by CC or related to CC’s provision of CC’s Services to Client.
6. Limited Liability. With regard to the Services or information provided by CC, CC shall not be liable to Client, or to anyone who may claim any right due to any relationship with Client, for any acts or omissions in the performance of the Services (including, without limitation, authentication, research, valuation, education, training, and sales or brokering of wine) or related to or arising from the provision of such information on the part of CC, except when said acts or omissions are due to willful misconduct or gross negligence. Client shall hold CC harmless from any obligations, costs, claims, damages, judgments, attorneys’ fees, and attachments arising from or related to such Services rendered to the Client, except when the same shall arise due to the willful misconduct or gross negligence of CC (which must be first adjudged as such by a court of competent jurisdiction).
7. Indemnity. If CC is made or implicated as, or threatened to be made or implicated as, a party to any action, dispute, claim, or proceeding, whether civil or criminal in nature, in any way related to any Services or information provided by CC, Client agrees to defend and indemnify CC for any costs or expenses related to such action, dispute, claim, or proceeding (including but not limited to costs, expenses, attorney’s fees, and damages of any kind). Client also agrees to add Consultant as an additional insured on any policy of insurance of client that could potentially provide coverage for any of the Services provided by Consultant.
8. Entire Agreement/Modifications. These TOS contain the entire agreement between the Parties hereto in relation to the provision of Services by CC. These TOS supersede any other written or oral agreement or arrangement between the Parties with the exception of any job agreement signed by CC and client, the terms of which shall supersede the terms of these TOS to the extent they are inconsistent or contradictory. CC reserves the right to revise or update these TOS from time to time. Client may request a copy of the most updated TOS in writing; CC shall provide such updated or revised TOS within ten (10) business days of such written request.
9. Choice of Law, Venue, and Jurisdiction. Interpretation, construction, and enforcement of these TOS are governed by the laws of the State of California and the United States without deference or application of any principles of choice of law. Any action related to these TOS shall be brought in a federal or state court of competent jurisdiction in San Francisco County, California. Client agrees to personal jurisdiction and venue in the referenced forum and agrees to waive any arguments or claims for lack of personal jurisdiction or inconvenient forum. Client does so on behalf of itself and any employees, officers, directors, owners, agents, consultants, and principals that
10. Attorney’s Fees. In the event any action to interpret, construct, or enforce these TOS is brought, the prevailing Party in any such action shall be entitled to attorneys’ fees and costs reasonably expended in such action, including any appeals.
If Maureen Downey, or anyone on Chai Consulting or Winefraud.com team, employee, consultant, contact worker, is compelled to testify for any reason involving the subject of the work, whether as a fact witness or an expert witness, clientagrees to cover legal representation and any associated costs, fees, expenses incurred as a result.
11. Severability. In the event that any provision of these TOS is held unenforceable or invalid, the whole of these TOS shall not be invalidated but instead, these TOS shall be construed as if it did not contain the unenforceable or invalid part.
12. Entire Agreement. These TOS, together with any job agreement signed by CC and Client, represent the entire agreement between the parties. No waiver, amendment, or modification of the agreement shall be effective unless in writing and signed by the party against whom the waiver, amendment, or modification is sought to be enforced. No failure or delay by either party in exercising any right, power, term, condition, default, or remedy under this agreement shall operate as a waiver of that right, power, term, condition, default, or remedy or shall be construed as a waiver of any other right, power, term, condition, default, or remedy.